Arizona weekly enterprise., 1887-12-03

Is permitted to keep silent when he should speak and thereby mislead another to his injury"
 Tn the case at lar, the defendants allowed the plaintiffs, or those under whom they claim, to open out their fields, and irrigate them with water of the Santa Cruz, as though they had a vested right therein; to vote fer and par ticipate i'll the election of water over seers or commissioners; to pay thelr pro portion of the assessment for water de- yelopment, etc. to pay their par5 of the expenses, and do their part of the labor, ill cleaning the acequias; to expend large sums of money m payment for their lands putting them in cultivation, and building their homes, and all this, too, for period of sixteen years or more. Can the defendants now exclude the plaintiffs from q participation i'll the use of these waters2 We are of the opinion that they cannot. See Dickens V. Col grove, 100 U, $. 578, Kirk Y. Hamil :, lO2 U. $. 68, ana authorities were cited Judge Harlan, in this case, quotes from King V. Inha oitants of Butterton, 6 term R. 544, in which Justice Lawrence said: II remember a case some years ago in which Lord ManifelF would not suffer d man to recover in ejectment where he had stood by and seen the de- fendant build on his land" The doe Urine of equitable estopped in pals will apply to cases even in courts of law
 It might be observed that, in this case, 1t IS true there were occasionally dis putes about who had the prior right to the use of the water. Indeed, from the defendants testimony, especially that of MT. Oury, these individual disputes had occurred prior to 1862, period anterior to the time, as alleged in defendants answer, when the plaintiffs first culti- vated their lands; so that some of these disputes must have occurred between occupants of the ''New Fields" alone But the testimony all shows, from the first to last, that the plaintiffs always claimed an equal right to the use of the water, and there seems to have been a pretty general acquiescence in the plaintiffs said use until the year 1885, when by some means, which are not apparent from the evidence, Carrillo, Hughes, and Davis became the acting water commits sioners, by whose authority perhaps, whether legitimate or not, Rentaria, the acting water judge or overseer, prevented the flow of said waters through said ac- equias upon plaintiffs land; and this suit is therefore the first distinct contest be- tween the cultivators of the "Old' and 'tNew Fields" involving their respectiv e rights to the use of the waters of the Santa Cruz river.
 Again. the admissions in defendants answer raise another important question All the evidence shows-in fact, it would go without saying-that the lands in the Santa Cruz river, both the "Old and New Fields" are absolutely worthless without the waters of said river. Now, if the greater portion of plaintiffs land has been in cultivation for 16 years or more, it must inevitably have been irri- gated with waters from the Santa Cruz rlver; and taking the averment in defen- dants answer as true, the plaintiffs only had the use of the surplus water, is not the conclusion inevitable that there is. ordinarily, enough water in said river to irrigate, with the necessary, reasonable, and economical use of the water all the lands in said valley, both old and new If the plaintiffs got the benefit of the surplus water only, there must have been quite quantity of it, enough to fructify their crops; for certainly they would not have remained there for 16 years with their families and starved It seems to us the admissions in the defendants an swer were inconsistent with the theory that plaintiffs had only the use of the surplus water. The evidence of plaintiffs show that they used the water of the Santa Cruz river just the same as the de- fendants; while defendants evidence, al- though claiming rights prior to plaintiffs to the use of the water, and that plaintiffs had only the right to use the surplus water, yet it is not seriously denied that plaintiffs actually did use said waters, as claimed in the complaint.
 ''Now, We are well aware of the well settled rule that where the evidence is sufficient to support the finding, or where the evidence is conflicting, although il may greatly preponderate against the said finding, the appellate court will not at law, interfere; however, in equity, the evidence Is clearly insufficient, or where there is no evidence at all, it is otherwise Besides, the obiect of motion for a new trial is to enable the appellate court tc look into the evidence to see if it bt sufficient to support the finding; and 1T looking into the evidence here we have not been able to escape the conclusion that the court below erred in its finding that plaintiffs used, without objection only surplus water, after the ''OId Fields had been irrigated. True, there wal abundance of evidence that they only hac had the right to use such surplus water but if they used water other than surplus even without right, for It years, without absolute hindrance by the defendants can the defendants now complaint If tn, owner of an estate stand by and see an other expend money on all adjoining estate, the latter relying upon an exist ing right of easement in the other estate without which such expenditure would b. useless, and do not interfere to proven the work, he will not be permitted t, interrupt the enjoyment of such ease ment. See Biselow, Estop. 512.. Thi is almost exactly the case at bar; defen dants certainly stood by and saw plaintiff opening out their fields; they must hay, known, too, that plaintiffs would not b.
 guilty of the extreme folly of going t
 such trouble and expense without expect
 ing the use of the waters of the Sant
 Cruz river; this being the sole and lsolitar | resource